HALL, WATENE-TOI & ROBERTS v R [2020] NZCA 183

HALL, WATENE-TOI & ROBERTS v R [2020] NZCA 183 [27 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA526/2018[2020] NZCA 183BETWEEN JEFFERY JAMES HALLAppellantAND THE QUEENRespondentCA528/2018BETWEEN TAMA HATEPE WATENE-TOIAppellantAND THE QUEENRespondentCA538/2018BETWEEN JULIAN DONALD ROBERTSAppellantAND THE QUEENRespondentHearing: 30 April 2020Court: Cooper, Dobson and Nation JJCounsel: M W Ryan for Appellant HallW D McKean for Appellant Watene-ToiS Tait for Appellant RobertsF Sinclair and J Mara for RespondentJudgment: 27 May 2020 at 10 amJUDGMENT OF THE COURTA The appeals against sentence are allowed.B In each case, the sentences imposed on the appellants for the manufacture ofmethamphetamine are set aside.C The sentence imposed on Mr Roberts for the possession of methamphetaminefor supply is set aside.D In the case of Mr Roberts, concurrent sentences of eight years and 10 months'imprisonment are substituted.E In the case of Mr Watene-Toi, a sentence of nine years' imprisonment issubstituted.F In the case of Mr Hall, a sentence of eight years and six months'imprisonment is substituted.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] These three appeals are against sentences imposed by Judge K B de Ridder inthe District Court at Whangarei on 17 August 2018 for manufacturingmethamphetamine and related crimes. 1 They were among a number of appeals notset down for hearing pending delivery of this Court's judgment in Zhang v R. 2[2] The principles set out in that judgment are to be applied because the appealswere filed before the date of delivery of the judgment, and the application ofthe judgment would result in a more favourable outcome for the appellants.3[3] As has been explained in other recent judgments of this Court, the approach tobe taken on appeal in such cases does not involve looking for error in the sentenceimposed by the District Court Judge, but requires an assessment of the appropriate1 R v Roberts [2018] NZDC 17152 [Sentencing judgment].2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.3 At [188].outcome of the sentencing exercise given application of the new guidelines establishedin Zhang.4Background[4] On or around 3 July 2016, the appellant Mr Hall telephoned Coastal HolidayHomes Ltd to book a holiday house in Tutukaka for eight days from 7 July 2016.Mr Hall booked the property for eight to nine days at a cost of approximately $2,500using a "Prezzie" card. On 9 July, a director of Coastal Holiday Homes went to theproperty to advise the occupants of an anticipated delivery of firewood. She noticeda van parked outside, which was in a rough condition. As she approached the houseshe saw that the windows were covered, but doors were open which she thought wasunusual given that it was winter and raining. She also heard what she described as avery loud hissing sound coming from the house. On returning to her own vehicle shenoticed that her skin was stinging and that continued for several hours. She decidedto telephone the police.[5] The police went to the property on 10 July 2016. On approaching the house,they noticed that the external windows had been covered. On reaching the deck, policesaw Mr Watene-Toi come out of the house, but on seeing the police he uttered anexpletive and ran back inside. The police entered and encountered two men in thekitchen, Mr Roberts and Mr Watene-Toi. They saw that there was a clandestinemethamphetamine laboratory in operation. Mr Roberts and Mr Watene-Toi werearrested for the manufacture of methamphetamine.[6] Further equipment consistent with the manufacture of methamphetamine wasfound at the property, both inside and underneath the house. Some $40,000 in cashwas discovered in the bedroom occupied by Mr Roberts. An AK-47 assault rifle wasfound in a bedroom occupied by a co-defendant, Ms McIntyre, and a shotgun waslocated in the bedroom occupied by Mr Hall and another co-defendant,Ms Gibbons-Hurinui. There was a further firearm found at the front door and therewere numerous rounds of ammunition.4 Su v R [2020] NZCA 128 at [7]; Miller v R [2020] NZCA 131 at [4]; and Royal v R [2020] NZCA129 at [30].[7] Mr Hall and Ms Gibbons-Hurinui were apprehended as they approached theproperty in a vehicle. Both were arrested for the manufacture of methamphetamine.[8] Mr Roberts pleaded guilty to charges of manufacturing methamphetamine,possession of methamphetamine for supply, possession of equipment with theintention to manufacture methamphetamine and three charges of possession offirearms.[9] Mr Hall and Mr Watene-Toi were tried and found guilty. Mr Hall wasconvicted of manufacturing methamphetamine, possession of equipment with intentto manufacture methamphetamine, possession of a firearm and possession ofammunition. He was acquitted on a charge of possession of methamphetamine forsupply.[10] Mr Watene-Toi was found guilty of manufacturing methamphetamine, andpossession of equipment with the intent to manufacture methamphetamine. He wasacquitted of a charge of possession of methamphetamine for supply as well as chargesrelating to possession of firearms and ammunition.[11] Ms Gibbons-Hurinui was also found guilty on a charge of manufacturingmethamphetamine and sentenced to 22 months' imprisonment because of her"minimal" involvement.5 She has not appealed.[12] A total of just over one kilogram of methamphetamine was uncovered by thepolice search. That total included 461 grams of methamphetamine subsequentlyextracted by ESR from 1.22 litres of liquid found in a reaction flask in the kitchenlaboratory at the time of the police search. Had the manufacturing process beencompleted, ESR confirmed that the liquid could have produced up to 573 grams offinal product, methamphetamine hydrochloride. A total of 322.1 grams ofmethamphetamine was found in the kitchen, and some 71.7 grams was found in thebedroom occupied by Mr Roberts. Further methamphetamine totalling approximately182.3 grams was discovered throughout the house.5 Sentencing judgment, above n 1, at [39].The sentences under appeal[13] As he was obliged to do, the Judge applied this Court's judgment in R v Fatu.6The Judge accepted the Crown's submission that just over one kilogram ofmethamphetamine should be taken into account for the purposes of establishingthe starting point. This included the methamphetamine subsequently extracted byESR from the 1.22 millilitres of liquid found in a reaction flask. For the purposes ofsentencing, the Judge took that amount to be some 566 grams.[14] The Judge noted that the manufacturing took place after the planned bookingof the property, the operation had involved organising and transporting the necessaryequipment for the purposes of manufacture, there had been an attempt to disguise theoperation from people who might otherwise have been able to observe it, and a fullyoperational methamphetamine laboratory had been established which was in operationby the time the police arrived at the scene. Overall, he considered that it was clearlya commercial operation and there was no credible basis for considering themanufacture was for personal use. The fact that the defendants apart from Mr Robertshad been acquitted on the charge of possession for supply did not in the Judge's viewdetract from the commerciality of the manufacturing operation. Accordingly,the Judge took into account the total amount of methamphetamine produced inarriving at the starting points he adopted for each of the appellants.[15] The Judge considered that the total amount of methamphetamine involvedclearly placed the offending in category four of the bands in R v Fatu, which prescribedperiods of sentence from 13 years to life imprisonment. The Judge took a startingpoint of 14 years' imprisonment for Mr Roberts. He applied an uplift of one year inrespect of the weapons charges. He deducted two years because of efforts made byMr Roberts towards rehabilitation and to recognise the time he had spent onelectronically monitored EM bail. An additional 20 per cent discount was applied forMr Roberts' guilty plea. The result was a final sentence of 10 years and six months'imprisonment.6 R v Fatu [2006] 2 NZLR 72 (CA).[16] In the case of Mr Watene-Toi the Judge rejected an assertion he had made tothe probation officer that he did not know methamphetamine was being manufactured.The Judge considered this was not credible for three reasons. First, Mr Watene-Toiwas present at the property when the laboratory was operating. Secondly, the Judgethought Mr Watene-Toi's reaction on seeing the police was significant. Thirdly, therewas a prior conviction for the manufacture of methamphetamine in 2002, whichindicated Mr Watene-Toi would have had some knowledge of what was involvedin the process of manufacture. The Judge concluded that Mr Watene-Toi would havehad an operational involvement in the manufacturing process and, in his case also,adopted a starting point of 14 years. A discount of 10 per cent was allowed for timespent on EM bail, resulting in a final sentence of 12 years and six months'imprisonment.7[17] The Judge considered Mr Hall had played a significant role in setting up theoperation by making the booking for the property. The Judge also found he hadprovided support and assistance in other ways. However, because he was not shownto have been actually involved in the manufacturing process itself and would have hadno control over the amount of methamphetamine manufactured, the Judge adopted alower starting point, of 10 years. He applied an uplift of one year for the firearm andammunition charges, to be served concurrently but then applied a discount of one yearfor the time spent on EM bail. This meant that the effective term of imprisonment was10 years.Sentencing under Zhang[18] This Court's judgment in Zhang describes a two-stage approach to sentencing,the first being setting the starting point, and the second addressing mitigating andaggravating circumstances relevant to the offender.[19] In setting the starting point, the quantity of methamphetamine involved in theoffending will be a significant consideration in fixing culpability. So too will be therole played by the offender.7 As we note in discussing Mr Watene-Toi's appeal below this is a deduction that should not havebeen made.[20] The sentencing bands established by Fatu are altered and new bandssubstituted. The position that applied under Fatu may be compared with what is nowto apply in terms of a table set out in the judgment:8Former: Fatu New: ZhangBand one: < 5 grams 2–4.5 years Community to 4 yearsBand two: < 250 grams 3–11 years 2–9 yearsBand three: < 500 grams 8–15 years 6–12 yearsBand four: < 2 kilograms 10 years to life 8–16 yearsBand five: > 2 kilograms 10 years to life 10 years to life[21] Insofar as role is concerned, this Court referred in modified form to adescription of roles which had been adopted for guideline purposes in theUnited Kingdom in 2012.9 Role is divided into three categories, headed "lesser","significant" and "leading" as in the following table:10RoleLesser Significant Leading1. Performs a limitedfunction under direction;2. engaged by pressure,coercion, intimidation;3. involvement throughnaivety or exploitation;4. motivated solely orprimarily by ownaddiction;5. little or no actual orexpected financial gain;6. paid in drugs to feedown addiction or cashsignificantlydisproportionate toquantity of drugs orrisks involved;7. no influence on thoseabove in a chain;1. Operational ormanagement function inown operation or withina chain;2. involves and/or directsothers in the operationwhether by pressure,influence, intimidationor reward;3. motivated solely orprimarily by financial orother advantage, whetheror not operating alone;4. actual or expectedcommercial profit;and/or5. some awareness andunderstanding of scale ofoperation.1. Directing or organisingbuying and selling on acommercial scale;2. substantial links to, andinfluence on, others in achain;3. close links to originalsource;4. expectation ofsubstantial financial gain;5. uses business as cover;and/or6. abuses a position of trustor responsibility.8 Zhang v R, above n 2, at [125].9 Sentencing Council (UK) Drug Offences: Definitive Guideline (2012).10 Zhang v R, above n 2, at [126].8. little, if any, awarenessor understanding of thescale of operation;and/or9. if own operation, solelyor primarily for own orjoint use onnon-commercial basis.[22] The Court noted that purity levels of methamphetamine seized in New Zealandin recent years have tended to be high, at an average of 73 per cent. Whilst itrecognised the possibility that there may be cases where the purity levels are lower,the Court said that that would need to be established, if asserted, in a disputed factshearing.11 There is no suggestion of that in the present case.[23] The stage two analysis in the judgment, addressing mitigating and aggravatingcircumstances personal to the offender, outlined various considerations under theheadings of addiction, mental health, duress or undue influence and social, culturaland economic deprivation. To the extent those considerations are relevant tothe present appeals, we discuss them below.[24] The Court emphasised that sentencing must achieve justice in individual cases.Consequently, despite the detailed terms of the guideline judgment, sentencing judgesretain flexibility and discretion in arriving at a final sentence which takes into accountand weights all relevant considerations.12[25] We turn now to each of the appeals.Mr Roberts[26] For Mr Roberts, Mr Tait submitted first that the starting point was too high andsecond that insufficient discounts had been allowed for mitigating factors.[27] As to the starting point, Mr Tait argued initially that the Judge proceeded onthe basis of too high a quantity of methamphetamine. This was based on the fact that11 At [129].12 At [10(a)], [48] and [120]. See also Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38];and Orchard v R [2019] NZCA 529 at [28].at the time Mr Roberts entered his guilty plea, the summary of facts referred tomethamphetamine of just over 500 grams, and not the larger amount on whichthe Judge in fact sentenced. This difference is largely accounted for by the fact that atthe time of the plea, ESR analysis of the liquid seized by the police was still takingplace. ESR were later to carry out a methamphetamine quantitation revealing asignificant amount of methamphetamine. The reality is that the manufacturingprocess, if run to completion, would have resulted in methamphetamine ofthe combined weight used by the Judge at sentencing. If there was serious doubt aboutthe quantity Mr Roberts could have sought a disputed facts hearing, but he did not.It would have been unreal for the Judge to adopt any other basis for sentencing. We donot consider there is any merit in this point.[28] However, Mr Tait also submitted that having regard to the new sentencingregime discussed in Zhang, even if the amount of methamphetamine manufactured istaken as a little over one kilogram, the starting point of 14 years would treatthe offending as being at the upper end of the new band four. On the face of it, thatdoes not seem appropriate having regard to the fact that band four applies to weightsbetween 500 grams and two kilograms.[29] Mr Sinclair, for the Crown noted that the starting point of 14 years'imprisonment adopted by the Judge reflected his assessment that it would properlyreflect the amount of methamphetamine produced, and the nature of the offending.He argued that the Judge's conclusion that Mr Roberts was a prime mover was amplyjustified having regard not only to the considerable quantity of methamphetaminefound at the scene, but also the large sums of cash in Mr Roberts' bedroom and hisrole in the manufacturing process itself. This was such as to engage a number ofthe indicia of a "leading" role in the offending. The combination of quantity and rolemeant that the starting point was within range.[30] We agree with Mr Sinclair's submissions concerning the significance ofMr Roberts' role. The facts justify the conclusion that he was in a leading role andthere was a significant amount of methamphetamine produced. He pleaded guilty tothe charge of possession of methamphetamine for supply and apparently had controlof the $40,000 cash likely to have been produced by dealing in methamphetamine.[31] We have no doubt that the starting point adopted by the Judge was within rangeapplying Fatu. But the task now is to apply Zhang. In terms of band four in Zhang,we think the starting point was too high. We consider it appropriate to adjust it downto 12 years to better reflect the fact that the amount of methamphetamine producedwas approximately half the maximum contemplated for band four offending, butotherwise to recognise Mr Roberts' leading role.[32] Mr Tait accepted that, regardless of the starting point, an uplift of one year forthe firearms offending was justified. He also accepted that the 20 per cent discountfor the guilty plea was adequate. However, he argued that the combined allowanceof two years to reflect time spent on EM bail and efforts made towards rehabilitationwas insufficient. Arguably, the discount given for these considerations should havebeen higher, especially having regard to the steps Mr Roberts had taken towardsrehabilitation.[33] Mr Roberts was initially remanded in custody between 11 July and 19 October2016 when he was released on EM bail. He remained on EM bail, with a 24-hourcurfew until February 2018. He was then admitted into the Higher Ground DrugRehabilitation Trust residential programme from which he graduated in June 2018.During that period, EM bail was temporarily suspended but he was subject to a nighttime curfew between 11 pm and 6 am to facilitate his participation in the programme.At that point he was admitted into Calgary House, a facility operated by HigherGround, until he was sentenced on 17 August 2018. During the latter period he wasagain subject to EM bail, and on a 24-hour curfew with exceptions to facilitate hisattendance at further rehabilitative programmes. Consequently, a significant period(about 18 months) was spent remanded on EM bail. There is no suggestion of anycompliance issues during the period of the remand.[34] While remanded in custody, Mr Roberts completed programmes provided bythe Community Alcohol and Drug Service and the Department of Corrections. He wasthen admitted into the Salvation Army Bridge Programme on 18 December 2017,successfully completing the programme prior to his admission to the Higher Groundprogramme. Mr Tait helpfully provided certificates evidencing the successfulcompletion of various programmes provided by the organisations to which we havereferred. The pre-sentence report recognised that Mr Roberts had taken these varioussteps, noting that an employee of Higher Ground had referred to the possibility of himbeing appointed as a "house host" at their Calgary street residence if not sentenced toimprisonment and stated that he had done well in their main programme. The reportalso referred to Mr Roberts as "extremely remorseful". So Mr Roberts has takenapparently genuine steps towards rehabilitation.[35] The Judge accepted that he had made "considerable efforts at rehabilitation"as well as being on EM bail "for some time", but then observed that "to a certain extentthose two are consistent with each other" because it was during this period thatthe rehabilitative steps had been taken. The Judge then referred to the need to avoid"double counting".13[36] Although he treated both rehabilitation and time spent on EM bail as linked,and gave an overall reduction intended to reflect both, he did not differentiate betweenthem and the two are distinct. Discrete recognition is desirable if only to demonstratetransparently the way in which the sentence has been constructed and to ensurerelevant considerations have been taken into account. There is, of course, no necessaryconnection between bail and rehabilitation. Time spent on EM bail is recognisedbecause of its significant limitations on freedom of movement. Positive rehabilitativesteps can be recognised as reducing the need for personal deterrence in sentencing,and offering scope for the application of the rehabilitative purpose referred to in s 8(i)of the Sentencing Act 2002.14[37] Time spent on EM bail is also a mandatory consideration under s 9(2)(h) of theSentencing Act. An allowance of up to 50 per cent of the time spent on EM bail is notuncommon.15 In this case that would equate to nine months.[38] It is in this context that the Judge's combined allowance for rehabilitative stepsfor time spent on EM bail needs to be assessed. Mr Tait submitted that we should13 Sentencing judgment, above n 1, at [34].14 Royal v R, above n 4, at [25].15 See Parata v R [2017] NZCA 48 at [12] and [15]; Wharrie v R [2019] NZHC 633 at [28];A (CA90/2017) v R [2017] NZCA 278 at [89]–[91]; Huata v R [2017] NZHC 2833 at [30]; andR (CA528/2016) v R [2017] NZCA 210 at [14].regard Mr Roberts as having diminished culpability because of his addiction, but wedo not consider the available evidence establishes his addiction was such as to impairhis ability to make a rational choice with respect to his offending.16 And the quantityof methamphetamine produced is obviously far more than was necessary to providefor his personal needs. In this case, rather, an allowance is appropriate to reflectthe substantial steps that Mr Roberts has subsequently taken to deal with his addiction.Seen in this light, we think it would have been appropriate to allow a discount of15 months for this consideration, in addition to the allowance for the time spent onEM bail. The combined allowance of 24 months given by the Judge does not thereforeseem inappropriate.[39] In the result we consider the appeal should be allowed, and the concurrentsentences of 10 years six months' imprisonment for the manufacture ofmethamphetamine and possession of methamphetamine for supply replaced bysentences of eight years and 10 months in each case. This is based on the adjustedstarting point and preserves the 20 per cent discount for the guilty plea and theweighting of the aggravating and mitigating personal circumstances applied by theJudge.Mr Watene-Toi[40] The principal point made by Mr McKean on behalf of Mr Watene-Toi was thatthe Judge erred by equating the culpability of Mr Watene-Toi with Mr Roberts.Like Mr Tait, Mr McKean submitted that the Judge's starting point of 14 years'imprisonment was too high given the quantity of methamphetamine involved.We accept that this is so under Zhang, for the reasons already discussed and ifMr Watene-Toi and Mr Roberts were to be regarded as equally culpable a startingpoint of 12 years would be appropriate.[41] Mr McKean however submitted that Mr Watene-Toi should be regarded as lessculpable. He emphasised in particular the Judge's apparent explanation of the notguilty verdict in respect of the possession for supply charge as being based on aconclusion that methamphetamine had not been possessed by Mr Watene-Toi16 Zhang v R, above n 2, at [138] and [147]. See for example Royal v R, above n 4, at [24].(or Mr Hall) for the purpose of supplying it. Mr McKean pointed out that the quantityof methamphetamine found was such that it was deemed to be possessed for supply ifthe jury found Mr Watene-Toi possessed it. Consequently, the defence run was thatMr Watene-Toi was not in possession of the methamphetamine, lacking the necessaryknowledge and control. That being the case, the Judge should have regarded absenceof possession as a clear indication of a reduced role in the offending. He submitted itwas not logical to regard the appellant as having a leading role when he was notinvolved in possession of any of the end product.[42] To the extent that the Judge was relying on his own view of the facts,Mr McKean submitted the conclusion that Mr Watene-Toi was a "prime mover"together with Mr Roberts was not justified. He emphasised that Mr Roberts hadpleaded guilty to all the charges, that he possessed the weapons and it was the bedroomused by him that contained $40,000 in cash. By contrast, Mr Watene-Toi was notshown to have occupied any of the bedrooms in the house, and he was acquitted onthe firearms charges. Mr McKean asserted that the jury must have acceptedMr Watene-Toi's statement to a police officer that he had been only a driver, doingwhat he was told. He argued there was no other way to rationalise the jury's verdicts.Mr Watene-Toi had simply transported the equipment for manufacture of themethamphetamine and had little or no financial gain from it.[43] Mr McKean claimed that Mr Watene-Toi's role was subsidiary, and analogousto that of Ms Phillips, one of the appellants whose appeal was determined in Zhang.17This Court accepted that Ms Phillips had a far lesser role than her co-defendant inactivities involving the supply of at least six kilograms of methamphetamine.The sentencing Judge adopted a starting point of five years' imprisonment for the twoleading supply charges. This Court upheld the starting point, even though havingregard to the quantity of methamphetamine supplied, a starting point of at least10 years might have been justified. The lower starting point reflected the Judge'sappreciation of the "very limited role" that Ms Phillips had played.1817 Zhang v R, above n 2, at [204]–[228].18 At [218].[44] Mr McKean submitted that a starting point of four years' imprisonment wasappropriate to reflect Mr Watene-Toi's limited role.[45] He properly acknowledged that the Judge made a deduction of 10 months fromthe starting point on the basis that Mr Watene-Toi had spent 18 months on EM bail.However, Mr Watene-Toi was the only defendant who was remanded in custody onarrest and was refused bail for the entire period of remand. That will of course betaken into account in due course under s 90(1) of the Parole Act 2002. It is not adeduction that the Judge should have made at sentencing.[46] We do not accept Mr McKean's submission that the Judge was wrong toconclude that Mr Watene-Toi had a significant role in the manufacturing of themethamphetamine. We are satisfied on the evidence that Mr Watene-Toi's role wassignificant. Not only did he assist in bringing equipment to the site, but he was presentduring the actual manufacturing operation itself. He can be assumed to have been wellaware of what was going on: apart from anything else, he had a previous convictionfor manufacturing methamphetamine, to which the Judge referred. Although thatrelated to offending in 2002 the Judge was entitled to infer that he would have beenwell aware of what was going on. His reaction to the arrival of the police at the scenewas further evidence of that. In terms of the roles identified in Zhang, Mr Watene-Toiwas on his own account involved for the purposes of paying off a debt and expectedto profit from his involvement to that extent. He must have understood the scale ofthe operation taking place and we are satisfied his conduct fell squarely within the"significant" category.[47] We do not consider the comparison with the appellant Phillips in Zhang issound. Mr Watene-Toi's role here was comparatively far more significant.Mr McKean's suggestion of a starting point of four years would not be justified on thefacts. It would take Mr Watene-Toi below the entry point for band three in Zhangnotwithstanding that over one kilogram of methamphetamine was manufactured.We accept Mr Sinclair's submission that this would be contrary to the apparent intentof Zhang, and inappropriate given the quantity involved and Mr Watene-Toi's role.1919 At [123].[48] We consider an appropriate starting point which reflected bothMr Watene-Toi's role and the amount of methamphetamine manufactured inaccordance with Zhang would be nine years' imprisonment.[49] The Judge did not consider that there were any aggravating circumstancespersonal to Mr Watene-Toi justifying an uplift from the starting point. The onlymitigating circumstance to which he referred was the time spent on EM bail and as wehave already noted Mr Watene-Toi was not entitled to any reduction in that respect.We are satisfied that the starting point we have identified of nine years will be anappropriate final sentence which also takes into account the overall offending,including the possession of equipment for which the Judge imposed a concurrentsentence of two years' imprisonment.[50] For these reasons, we will allow Mr Watene-Toi's appeal, quash the sentenceof 12 years and six months' imprisonment imposed in respect of manufacturingmethamphetamine and substitute a sentence of nine years' imprisonment.Mr Hall[51] For Mr Hall, Mr Ryan first submitted that in setting the starting point of10 years the Judge gave insufficient weight to the appellant's limited role.Second, Mr Ryan claimed that the Judge erred by not giving the appellant credit forpersonal mitigating features, with the exception of time spent on EM bail.[52] In relation to the first ground, Mr Ryan submitted that the starting point of10 years' imprisonment was manifestly excessive and did not properly reflectMr Hall's limited role. He argued that the Judge placed too much emphasis on thescale of the operation when setting the starting point. This had resulted in a failure toacknowledge that Mr Hall's role was limited to arranging the booking for the holidayhome used to set up the clandestine methamphetamine laboratory. While apprehendedon the day the police entered the property, Mr Hall and Ms Gibbons-Hurinui wereapprehended as they travelled to the property and were not present during themanufacturing process. Nor was Mr Hall involved in the purchase of equipment oringredients required for manufacture. He had not driven other persons to the addressand he was not present there when the police arrived. His fingerprints were not foundon any of the equipment used in the manufacture. Mr Ryan claimed that themanufacture would have taken place regardless of Mr Hall's presence. He alsopointed out that no cash had been found in the bedroom that Mr Hall occupied, andMr Hall was not found guilty of possession of any of the methamphetamine.There was no evidence that Mr Hall had shared in the profits of the manufacture.Mr Ryan submitted that a starting point at the bottom of band three, of eight years'imprisonment, would appropriately reflect Mr Hall's culpability.[53] In relation to the second ground of appeal, Mr Ryan submitted that theevidence disclosed strong indications of Mr Hall's addiction to methamphetamine.He referred to text messages which he said contained evidence of Mr Hall's low leveldealing to support his addiction. He referred initially to text messages asking "haveyou got a vessel?", "have you got any?", and "can I come around?". Mr Ryan filedsupplementary submissions to which were attached 16 pages of text messages whichhe submitted were further evidence of Mr Hall's addiction. Reliance was also placedon an unsworn statement by Mr Eric Hall, the appellant's father, in which Mr Hallsenior confirmed that the appellant had got heavily involved in drugs living inNew Zealand, overcome by loneliness and despair following the break-up of hismarriage.[54] Mr Ryan also submitted that Mr Hall should have received a discount by virtueof being an Australian citizen, imprisoned away family support in a foreign country.He submitted that although his family were only a four-hour flight away, the cost oftravel for family members would be prohibitive. Mr Hall has been in custody sinceJuly 2016 and has not had family visits during that time. In his supplementarysubmissions Mr Ryan also raised the issue of a discount for previous good character,based on Mr Hall not having previous convictions, a matter not mentioned by theJudge.[55] In combination, Mr Ryan submitted that a discount of 20 per cent should havebeen allowed for mitigating circumstances personal to the appellant.[56] For the Crown, Mr Sinclair noted that Mr Hall had played a significant role bybooking the house where the manufacturing took place and staying at the propertybeing, as the Judge found, "ready, willing and able to assist" as the operationproceeded.20 However, the Judge had correctly concluded that a starting point of14 years would overstate his involvement. Mr Sinclair argued that Mr Hall's rolewould fit within points one and five of the indicia of a "significant" role in Zhang.Organising the venue for the production was a managerial role and although he deniedhaving any awareness or understanding of the scale of the operation, that claim wasnot credible. While he was not present when police searched the house, he was foundnearby, and was clearly on his way there. There was also evidence that he had beenstaying in the house in one of the bedrooms. He had been convicted not only ofmanufacturing methamphetamine, but possession of equipment with intent tomanufacture it and possession of a firearm and ammunition.[57] As to the mitigating circumstances relied on by Mr Hall, Mr Sinclair submittedthat the text messages relied on were insufficient to establish his offending was drivenby addiction and he noted that no mention of addiction had been made in thepre-sentence report. The statement made by the appellant's father did not advancerelevant matters much beyond self-reported addiction. This was insufficient to justifya reduction in sentence, in accordance with the approach articulated in Zhang.21[58] As to Mr Hall's status as a foreign national, Mr Sinclair pointed out that hisfamily were not far away, that he had been supported at legal appointments, and facedno language barriers. He noted that Mr Hall had begun to offend after being in NewZealand for only six months, submitting that was not long enough to establish goodcharacter for the purpose of a discount. Overall, it was submitted that there should beno reduction in sentence as a consequence of the various considerations relied on.[59] The Judge recognised that Mr Hall, despite having a significant role, was lessculpable than either Mr Roberts or Mr Watene-Toi. The starting point adopted in hiscase was 10 years, as opposed to the 14 years fixed for the other two. Given the12-year starting point that we have considered appropriate for Mr Roberts, anequivalent reduction for Mr Hall would suggest a starting point of about eight yearsand six months.20 Sentencing judgment, above n 1, at [28].21 Zhang v R, above n 2, at [148].[60] Mr Ryan did not criticise the Judge's approach of applying an uplift of one yearin respect of the firearms charges, but then reducing that because of the time spent onEM bail. Nor was there any criticism of the concurrent sentences imposed for thefirearms and ammunitions charges.[61] We are not persuaded that there should be any reduction for the personalmitigating factors relied on by Mr Ryan. As with Mr Roberts, we do not consider theevidence establishes that Mr Roberts had diminished culpability because of hisaddiction.22 As Mr Sinclair pointed out, the pre-sentence report contains no narrativethat would justify a conclusion that addiction was the reason for Mr Hall's offendingand while we accept the text messages establish he was a user, they go no further.[62] An Australian citizen in prison in New Zealand is in our view a far less worthycandidate for a reduction in the sentence that would otherwise be appropriate becauseof the difficulties of imprisonment in a foreign country, away from family supportnetworks and having limited English.23 The family are not as far away as in othercases where a discount for this factor has been applied, and Mr Hall faces no languagedifficulty. His circumstances may be contrasted with cases such as de Macedo v Rwhere an allowance was made for an offender with a low level of English and isolatedfrom his support network in Brazil,24 and the case of Mr Yip, dealt with in Zhang.25In this case, there is also some evidence of family support. The pre-sentence reportreferred to Mr Hall's parents owning a property in Tokoroa which was referred to as apossible location where a sentence of home detention could be served. We wereadvised at the hearing of the appeal that that property has since been sold.However, we note that Mr Ryan conceded that family support had been available at"legal appointments" during the time that Mr Hall has spent in custody. Mr Eric Hall'sstatement is apparently that of a responsible and caring father, who has some insightinto the cause of his son's problems and, in our assessment, is likely to support himthrough the inevitable term of imprisonment which his conduct merits.Overall, we are not satisfied that the element of hardship which would be necessary tojustify a reduction for this consideration has been made out.22 At [138] and [147]. See for example Royal v R, above n 4, at [24].23 At [163].24 de Macedo v R [2020] NZCA 132 at [26]25 Zhang, above n 2, at [301].[63] Nor do we consider the Judge erred by not giving a reduction for goodcharacter. This issue was not mentioned in the sentencing remarks, and it is unclearthe issue was advanced before the Judge. In any event, while it appears Mr Hall hasno previous convictions, as Mr Sinclair pointed out he began to offend soon after hearrived in New Zealand. He was it appears a regular user of methamphetamine andhis father's letter indicates he was using drugs in Australia. No considerations apartfrom the lack of convictions were advanced in support of his good character and weare not persuaded a reduction is appropriate.[64] For these reasons, we propose to allow the appeal by quashing the sentence of10 years' imprisonment imposed on the charge of manufacturing methamphetamineand substituting instead a sentence of eight years and six months.Summary[65] The appeals against sentence are allowed.[66] In each case, the sentences imposed on the appellants for the manufacture ofmethamphetamine are set aside. The sentence imposed on Mr Roberts for thepossession of methamphetamine for supply is also set aside.[67] In the case of Mr Roberts, concurrent sentences of eight years and 10 months'imprisonment are substituted. In the case of Mr Watene-Toi, a sentence of nine years'imprisonment is substituted. In the case of Mr Hall, a sentence of eight years and sixmonths' imprisonment is substituted.Solicitors:WRMK Lawyers, Whangarei for Appellant Watene-ToiCrown Law Office, Wellington for Respondent